Two years after the Obama administration offered states a Monopoly-style “get out of jail free” card from some demands of the 2001 No Child Left Behind law, it will offer another round of waivers in exchange for further policy changes.

Perhaps the most far-reaching federal demand in the ESEA Flexibility Renewal Form is that states “ensure that poor and minority students are not taught at higher rates than other children by ineffective teachers.” The application requires states to identify and redistribute teachers to satisfy this condition using student and teacher data states collect.

"The department is wading into treacherous waters. Making waiver-renewal decisions based on fidelity of implementation is risky business. How do you decide what's good enough? [And] reassigning teachers can frustrate both teachers and the schools and families that lose them,” said Andy Smarick, a partner at Bellwether Education Partners.

The department has given four broad criteria for NCLB waivers: Common education standards and tests, targeting low-performing students, teacher and principal evaluations, and reducing duplicative efforts.

“We also view ESEA flexibility as a continuous improvement process,” said U.S. Department of Education (USDOE) spokesman Stephen Spector.

The waiver guidance also directs states to hold districts, not just schools, accountable for student performance.

“District accountability and plans for teacher equity are not new—district accountability was part of the original requirements, and the original requirements also envisioned the use of the new evaluation and support systems to ensure all students have access to effective teachers,” Spector said.

Dubious LegalityThe Center on Education Policy noted U.S. Education Secretary Arne Duncan has legal authority to waive “any statutory or regulatory requirement” of NCLB, but it’s not clear he has legal authority to require states to do what he wants in exchange.

“The waivers are part of a long line of executive overreach that is not limited to education, compounding a pattern of disregard for the normal legislative process,” said Lindsey Burke, a Heritage Foundation education fellow.

States have tried to resist NCLB, but quickly learned the federal government would withhold tax money if they tried.

In March 2005, state Sen. Margaret Dayton (R-Orem) authored a bill that let Utah throw out NCLB’s “unfunded mandates.”

“We knew NCLB was arbitrary, capricious, and heavy-handed, that it totally marginalized parents’ rights, was anti-constitutional and would reduce our local school board responsibilities to clerical duties,” said Dayton. “NCLB violates the constitution of each state. To be admitted to the Union, each state had to have a plan for educating their own children, as it was not the job of the federal government.”

“Not long after, five, six men from the U.S. Department of Education showed up in Utah wanting meetings with legislators and the governor,” Dayton said. “We were told we would lose over $70 million in federal funds if we continued. They even alluded to us losing money from areas other than education.”

So states backed down.

What’s NextIt’s not likely Congress will redo NCLB in the near future, leaving the Obama administration free to interpret the law at will, said American Enterprise Institute scholar Rick Hess.

He said legislation currently floating about the House and Senate “is all mostly kabuki theater.”

“Ultimately, conservatives should push to dramatically limit federal intervention in education—not by ‘fixing’ NCLB but by allowing states to completely opt out and spend dollars on their most pressing education needs,” Burke said.

When Congress gets around to reauthorizing the law, Spector said, “We hope that Congress learns from the good work that is happening in states under ESEA flexibility, and incorporates that work into a new law so that states can continue with these reforms.”

The waiver requirements generally align with USDOE requirements for successful Race to the Top grant (RTTT) applications.

A recent study of RTTT found states are largely behind schedule in meeting promised goals for educational outcomes, and many are experiencing substantial setbacks because of unrealistic promises and unexpected challenges.